Evidence 1. Introduction 1.1 The trial process EA ss 11, 26-29 1.2 Background to The Evidence Act 1995 (Cth) and NSW Uniform Evidence Law ALRC Evidence Interim and Final Reports would be useful for interpreting the Act. No lengthy second reading speech. Section 34 of the Interpretation Act. Co-existence with other statutes The Evidence Act co-exists with other statues. (s 9 EA) Section 281 of the CPA requires that an admission be video or audio recorded. Ensuring that the police aren t verballing the suspect (reliability). Also prevents the suspect from retracting the evidence. Short point: Co-existence with other Acts Section 9 the Act does not affect the operation of a principle unless it says expressly, or by necessary inference. The Common Law Applies if the Evidence Act does not cover a principle. 1.3 Taking Objections What is objectionable? (1) Evidence that is in the wrong form leading. (2) Evidence that is inadmissible relevance, hearsay, opinion, character. (3) Evidence that is done out of procedure case closed. Why is objection necessary? To stop something happening. So that then the judge can rule on it. So that (in a civil case) they can appeal on that point. Under the Criminal Appeal Rules (Rule 4) there can be no appeal after a failure to object. Unless the court gives leave. Case of Picken (2007) NSW 319. The Court will grant leave only if the appellant can demonstrate that the failure to object led to a miscarriage of justice. Have to show that the evidence was really powerful, inadmissible, and should have been objected to. 1.5 Dispensing with the rules of evidence 190 Waiver of rules of evidence (1) the court may, if the parties consent, waive the rules of evidence regarding:
(a) the giving of testimony, (b) the producing of documents (c) the hearsay rule, opinion rule, credit rule, character rule, tendency and coincidence, judgements and convictions and admissions. (2) In a criminal proceeding, the defendant s consent is not effective for the purposes of subs (1) unless (a) they have been legally advised or (b) the court is satisfied that the defendant understands the consequences of giving the consent. Basically, they would have to know that that means the evidence is going in, that will be used to prove the charge, and there can be no appeal on this. In criminal proceedings, the rules of evidence are generally applied quite strictly. (3) In civil proceedings, the court can waive the provisions if it would involve unnecessary expense of delay ruling on all the evidence provisions. 1.6 The voir dire Preliminary questions are determined at a voir dire. 189 The voir dire : Meaning of preliminary question If the determination of a question whether: o evidence should be admitted (whether in the exercise of a discretion or not), or o evidence can be used against a person, or o a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question. The voir dire is a trial within a trial. Absence of the jury The jury would not generally be present at the hearing of a preliminary question unless the court otherwise orders: s 189(4).
2. Proof Part 1 Different types of evidence A case may rely on direct evidence, or circumstantial evidence, or both. Direct evidence Evidence, which if accepted, establishes a fact in issue. No inference need be drawn. For example Evidence of an eyewitness who saw the defendant slap the child. Circumstantial evidence Evidence which, if accepted, requires further inference to establish the fact in issue. For example Issue of whether defendant stabbed the victim finding defendant s fingerprint inside the victim s home. What are the facts in issue? Criminal case: Elements of the charge(s). Civil case: Material facts in the pleadings. How is circumstantial evidence distinguished? Different types Examples: Motive I saw D argue with V hours before the stabbing. Identification (visual) I saw X outside V s house, minutes after the stabbing. I identify D as X. (last part happens in a police line-up) Admission Such as evidence of a previous representation I met D on the evening of the stabbing. He said V had it coming. Could be used as evidence of admission. Defence say there are competing inferences on the evidence. Forensic ID The knife found at the scene had V s blood and D s fingerprints. Means I saw D with a similar knife a week before the killing. 2.1 Burden of Proof Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 There are two burdens: the legal burden and the evidential burden. (1) Legal burden: The obligation of a party to meet the requirements of a rule of law to establish a particular charge. Usually follows the evidential burden. (2) Evidential burden: Whether the evidence, taken at its highest, (which means the judge will assume it is reliable/credible) is capable of proving the fact alleged. Legal (persuasive) burden
Apollo Shower Screens v Building and Construction Industry (1985) Apollo wanted a declaration from the court that their workers were not engaged in building work/carpentry. Apollo had to prove a negative. Court had regard to the relative resources and knowledge of parties in regard to an evidential burden. Result: Even though Apollo had very little evidence to prove that, they succeeded. Court took into account the fact that the defendant had the power to prove the evidence: Workers were within the scheme. Joseph Constantine Steamship Line v Imperial Smelting Corp [1942] There was an agreement that the steamship would cart stuff for the Smelting Corp. There was an explosion on the ship which meant that the ship could not carry cargo for the corporation. The Smelting Corp argued that the ship was in breach of the contract. Ship: How could we be? Corp: You caused the explosion, so you were at fault. Issues: 1. Was there a contract? P to prove 2. Did D fail to cart stuff as agreed? P to prove 3. Was contract frustrated? D to prove 4. Was frustration self-induced? P to prove Point of Appeal: The P had not proved 4. The party who alleges something has the legal burden/onus of proving a particular matter. Evidentiary Burden (distinguish legal or persuasive burden (factual question)) Whether the evidence, taken at its highest, (which means the judge will assume it is reliable/credible) is capable of proving the fact. Burden of production The party alleging must adduce sufficient evidence that could persuade reasonable fact-finder to requisite standard Weight (credibility) of the evidence will be left for fact-finder Split burden Example self defence D bears evidentiary burden Persuasive burden remains with P 2.2 Standard of Proof EA ss 140 142 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Green v The Queen (1971) 126 CLR 28
Shepherd v The Queen (1990) 170 CLR 573 Application of the standard Civil Trials 140 Civil proceedings: standard of proof In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: o the nature of the cause of action or defence, and o the nature of the subject-matter of the proceeding, and o the gravity of the matters alleged. This is looking at the strength of the evidence to ensure that there is cogent evidence Qantas v Gama. Looked at Briginshaw. The correct application is s 140. It is not a variable test. You are focusing on the strength of evidence. Criminal Trials 141 Criminal proceedings: standard of proof In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. Asymmetric criminal standard of proof Van Der Meer (1988) 82 ALR 10, 31 (Deane J) The reason the test is so high is to prevent wrongful convictions. Meaning of Beyond reasonable doubt Criminal Bench Book High Court You can t tell the jury what beyond reasonable doubt means the ordinary meaning. It is not [the jury s] task to analyse their own mental processes. Green v The Queen 141 (2) Defendant must prove its case on the balance of probabilities The only instance where a defendant has the onus to prove his or her case on the balance of probabilities is in cases of insanity, and where there is a statutory exception. What must be proved to requisite standard? The elements of the claim/offence Any fact essential to proof of the element. Circumstantial evidence Strands in a cable rather than links in a chain.
R v Hillier Defendant convicted of strangling his ex-wife. Motive Custody battle. Opportunity Babysitter looking after children. Guilty mind Set fire to house to try and cover evidence. Forensics Placing him at the scene. On appeal the ACC set aside the conviction because of doubts about the forensic evidence. At the High Court, this was overturned because without the forensics, it was still open to the jury to be persuaded BRD on the whole of the evidence. Direction a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence if there is a rational explanation consistent with innocence Shepherd v The Queen (1990) Most cases, circumstantial evidence leads to an intermediate fact that is not expressly needed for a finding of guilt. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. It may be necessary to give a warning in those cases. But where the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. Dawson J Here, the evidence was like strands in a cable. DAWSON J [6] the prosecution bears the burden of proving all [at 580] the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact every piece of evidence relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Standard of proof in preliminary matters EA s 142 Court determines on balance of probabilities whether certain evidence is admissible or inadmissible. (Done on the voir dire). 1.3 Prima Facie Case May v O'Sullivan (1955) 92 CLR 654 Doney v The Queen (1990) 171 CLR 207 Prima facie case (criminal and civil) P must discharge evidentiary burden. No case to answer? It is a question of law.
The Judge will ask, Taking the evidence at its highest, could it persuade the factfinder to requisite standard? May v O Sullivan It is not correct to say that the raising of a prima facie case throws upon the defendant the onus of making an answer. The onus of proof rests on the prosecution from beginning to end. Doney A verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury, there should be no direction of no case to answer. Reopening the prosecution case The test allowing the prosecution to reopen case: Very strict: only if they could not have foreseen that it (the piece of evidence, witness, etc.) was needed.
3. Adducing evidence witnesses and real evidence 3.1 Calling a witness EA ss 11, 26 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) R v Kneebone (1999) Velevski v The Queen (2002) EA s 11 preserves court s power to control proceedings. The first step in adducing testimonial evidence is ensuring the witness is there. Who calls the witness? The party that wants to adduce the evidence. Civil case: adversarial parties determine whether a witness is to be called. EA s 26 refers to the courts power to question witness. Clarke Equipment v Como (Civil case) A judge can only call a witness with the consent of both parties. In examination in chief, only non-leading questions can be asked, whereas in XX, leading questions can be asked. Tactical advantage in being able to XX. Can a judge call a witness in a criminal case? Yes, in the most exceptional circumstances. R v Apostillides. In the case where the accused was unrepresented and the Judge called psychological evidence to establish the defence of mental illness. R v Damic The prosecutor has the duty to be fair Object is to establish the whole truth. To ensure a fair trial Whitehorn v The Queen case of Kneebone. DPP guidelines Bar Rules Whitehorn v The Queen In performing the function of presenting the case against an accused, a Crown Prosecutor must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused s trial is a fair one.
Dawson J All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. NSW DPP Guidelines: The Crown should generally call all apparently credible witnesses whose evidence is essential to the complete unfolding of the Crown case mere inconsistency of the testimony of a witness with the Crown case is not grounds for refusing to call the witness. NSW Bar Rules: (h) the prosecutor is not obliged to call evidence from a particular witness if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused. R v Apostillides Facts: Two witnesses with the plaintiff immediately before the alleged sexual assault. Prosecutor did not call them defence had to call Crown were able to cross-examine to adduce evidence of prior conviction from one of them. Issue: Did the prosecution s failure to call the witnesses amount to a miscarriage of justice? Held: 6 principles for the conduct of criminal trials in Australia: The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. The trial judge may but is not obliged to question the prosecutor about their reasons for not calling the witness. At the close of the Crown case, the trial judge can invite but not direct prosecutor to call a particular witness. When the judge invites the jury to make a finding, he or she can comment on the Crown s failure to call a particular witness. Save in the most exceptional circumstances, the trial judge himself should not call a witness to give evidence. A decision to not call a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. (i.e. Would have made a difference to the decision). Principle 6 is formulated such that it is not necessary to find misconduct on the part of the prosecutor for a decision to amount to a miscarriage of justice. The absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred.
So if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the essential question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory. R v Kneebone Facts: Aggravated sexual assault of de facto spouse s 14 year old daughter. Complainant s evidence was that Kneebone struck her, pushed her against a wall, choked her and sexually assaulted her in her bedroom. During the assault the mother came into the room, said that s enough, and walked out again. Prosecution did not call the mother on the grounds that she was in the defence camp. Defence did not call her either. In sentence proceedings, the mother gave evidence in Kneebone s favour. During the proceedings, the Judge asked the mother about being there during the assault. The mother denied that it had happened. Issue: Did the prosecution s failure to call the mother amount to a miscarriage of justice? Held: It is necessary for a prosecutor to point to identifiable factors which justify a decision not to call a material witness on the grounds of unreliability. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing the witness to be able to form the opinion. In this case the prosecution had not interviewed the mother, so could not point to any basis for deciding the mother s evidence would be unreliable. The witness statements to the police concerning the physical assaults may have been explicable on a basis other than being in the accused s camp. The failure to call the mother amounted to a miscarriage of justice. An approach, whereby the witness is not called at all or is left to the defence to call because the witness evidence is seen as not fitting the prosecution s view of the case is likely to lead to a miscarriage of justice. Velevski v The Queen Facts: Appellant convicted of murdering his wife and three children. Conflicting expert evidence from forensic pathologists. Dr Bradhurst (at scene) and Defence expert opined murder/suicide. Four other Crown experts said murder. OIC mentioned that some of his other professional colleagues agreed with Dr Bradhurst. But since Dr Bradhurst s report covered the views held by those doctors, he did not see the point of getting further reports from them. Issue: Did the prosecution s failure to call those other experts constitute a miscarriage of justice? Held: (Majority) No miscarriage of justice.